Defect at the time of installation of a structure and that at the time of accident;

Even if the installation of a structure was made so that no longer method can be expected due to the circumstances and level of technology at the time of the installation of the structure, if all facilities sufficient to prevent flood at the time of the occurrence of the accident are not installed, there is a defect in the preservation.

Article 758 of the Civil Act

Supreme Court Decision 73Da370 Delivered on September 25, 1973

[Judgment of the court below]

[Defendant-Appellee] Plaintiff 1 and 3 others

Daegu High Court Decision 75Na844 delivered on October 20, 1976

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The defendant's attorney's grounds of appeal are examined.

(The contents of the supplemental appellate brief not timely filed are examined within the scope of the grounds of appeal)

1. In a detailed review of the judgment of the court below, the court below acknowledged the fact that the above accident occurred because it was caused by the collapse of the embankment because it was caused by the defect in the irrigation channel and all other facilities including the embankment owned and managed by the defendant on September 14, 1972, including the embankment of the water source. The court below rejected the defendant's assertion that the above accident was caused by a kind of natural disaster which could not be caused by human resources. The purport of the judgment of the court below is not to say that the whole defect of the water source of this case, which caused the accident, was not constructed as concrete, and even if there was no defect at the time of the construction of the structure, the possessor or the owner should be responsible for it, and even if the water source of this case was installed to prevent any further method in light of the situation and level of technology at the time of the construction of the structure, it cannot be accepted as long as it had been equipped with the purport of the disaster, such as this case, and thus, it cannot be justified as it did not meet all the purpose of the disaster.

In addition, according to the records, although the court below accepted the results of on-site inspection in the court of first instance and the court below for the above recognition, it was pointed out that the court below did not find any trace of verifying the accident site. However, if the court below reviewed the results of on-site inspection in detail in comparison with the records in the records, the court below submitted 75Na843 case and the report stating the results was submitted Nos. 10 evidence 10 and 2. The court below found that the "on-site inspection results" was added to the "on-site inspection results" as evidence, while admitting the above evidence in the judgment of the court below, and further reviewed the evidence by comparing the testimony of each letter and witness as cited by the court below for the above recognition and the results of on-site inspection with the records of the first instance court documents and on-site inspection, the above recognition can be justified. Thus, even if the court below accepted the results of on-site inspection by the court below as evidence in the domestic fact-finding, it cannot be said that such illegality affected the judgment of this case.

2. The court below recognized the amount of damages for the lost profit of the deceased non-party 1 caused by the accident as KRW 2,155,610, and found that the non-party deceased was negligent in the accident, but the negligence is not exempt from the defendant's liability, and it is merely a reason to consider the amount of damages in determining the amount of damages, and it is reasonable to determine the amount as KRW 1,70,000. When determining the records, the above measures of the court below can be justified, and even if determining the records, it cannot be found sufficient data to recognize that the amount of damages for the lost profit of this case other than the amount claimed by the defendant was paid as compensation for consolation money or damages for the lost profit of this case. On the contrary, as the court below justified, it can be seen that the money was paid by the defendant as part of relief measures against the victims of this accident. Thus, the court below did not accept the defendant's order related to the same purport.

3. According to the records, at the time of the oral argument of the court below, the defendant representative stated that the plaintiff renounced the right to compensation for damages by receiving relief from the defendant, and presented evidence Nos. 15-1 through 3, 17, 18-1 through 16-2, 17, and 18 as documentary evidence, and sought summons from the witness non-party 3. The plaintiff representative denied the part contrary to the previous argument and denied the purport of proving the establishment of evidence Nos. 3. 3. The court below rejected the witness non-party 2, who was summoned at the time of the second oral argument without adopting the plaintiff's motion for evidence as to the witness, and concluded the oral argument. According to the records, it is reasonable to view that the defendant's argument about the waiver of right or the above witness's evidence should be concluded before it was concluded, and it is reasonable to conclude that the defendant's argument or the above witness's argument as to the above witness's argument was not concluded at the time of the first oral argument or the record.

Even if other records are recorded, there is no reason to acknowledge facts without any evidence in the judgment of the court below or to believe that there is any error in the value judgment of the evidence, and there is no reason to find any illegality such as misunderstanding of the legal principles as to comparative negligence in tort damages.

Therefore, this case’s appeal is dismissed in accordance with the provisions of Articles 400, 395, and 384(1) of the Civil Procedure Act on the grounds that there are no grounds for appeal. The burden of litigation costs is governed by Articles 95 and 89 of the same Act on the burden of litigation costs, and is so decided as per Disposition by the assent of all participating judges.

Justices Min Jae-chul (Presiding Justice)